A matter of trust

Saturday

Oct 27, 2012 at 12:01 AM

By Joshua Spivak Los Angeles Times (MCT)

MCT FORUM

The Electoral College is one of the most controversial and ridiculed parts of the Constitution. It is not just for the obvious reasons - the "wrong winner" elections of 1876, 1888 and 2000. The college has also focused the nation's attention on a few swing states, allowing candidates to ignore a large percentage of the voters in their campaign. Today, the three largest states get little attention, except as ATMs for campaign fundraising.

Criticism of the Electoral College is rampant, and defense of it rarely goes beyond "why change?" What is rarely discussed is why it was created and what it was designed to do. The college was very much a part of the philosophy of the Constitution - an intelligent compromise between many competing interests, part of the system of checks and balances.

What would eventually be called the Electoral College - it did not gain that moniker until the 1800s - generally escaped criticism in the bitter ratification debates after the Constitution was written. Alexander Hamilton was particularly proud, noting that it was "almost the only part of the system, of any consequence, which has escaped without severe censure." The "anti-Federalist" opponents of the Constitution tacitly agreed with the college concept. This may not be surprising because Congress, not the executive branch, was supposed to be the locus of power.

However, an even more important reason to have an Electoral College was because the young nation had little experience in directly electing executives. In most states, the governors were not chosen by the voters. Instead, in eight of the 13 original states, the legislature chose the governor. And in two of the other states, if no candidate received an absolute majority of votes, the legislature ended up making the choice. This was the model the constitutional conventioneers drew on. The original plan that was brought to Philadelphia, and the first outlines of a presidency adopted by the convention, provided for election of the chief executive by Congress.

The option of choosing a president by popular vote was voted on a number of times during the convention, but only two states were in favor of it. There were a number of reasons to oppose it. Many of the conventioneers believed the country was too large to directly elect the president. Some Southerners realized their states' impact would be diluted, as the compromise that counted three-fifths of slaves as part of the population for representation and taxation purposes gave the slave states more impact in Congress than they would have in a popular vote. Some states' rights advocates wanted the states to have more of a say. Small states were concerned that their votes would be drowned out, with a few large states able to gang up to select a candidate; the same impetus helped push forward the idea of equal representation in the U.S. Senate. And still others simply did not trust the people to choose properly.

But the idea that Congress would choose the president failed the checks-and-balances test. The conventioneers were worried that a congressionally chosen president would be basically owned by his selectors. So they created the Electoral College to act as an alternative Congress. It contained exactly the same number of members as Congress. As an added safeguard, federal officials were banned from serving as electors, and the electors did not meet as a national group but rather met in each state.

Even with this alternative, Congress still retained a potentially large role. Each elector cast two votes, one of which had to be for someone from another state. The second-place finisher became vice president. There was a further expectation that the electors' votes would be divided among favorite sons. If this came to pass, the electors would have served as a nominating committee. The top five candidates would be sent to Congress, which would select a president in a state-by-state vote of the House delegations. The winning candidate needed an absolute majority of the states.

The system was not perfect. Congress was called on to select a president in 1800 and 1824. In the first instance, Thomas Jefferson and his running mate, Aaron Burr, both got 73 electoral votes. That election led to the creation of the 12th Amendment, which divided up each elector's vote into one for a presidential candidate and one for a vice-presidential candidate and lowered the number of candidates sent to Congress from five to three. In 1824, there was a four-way split, which played a large role in helping to create our current two-party political system. Congress also played a role in the disputed election of 1876 - though that was ultimately decided by a commission.

If the vote in November is close, the Electoral College is guaranteed to come under increased scrutiny and another avalanche of complaints. Although the likelihood of change is small, it bears considering how the college came into being and that it met the founders' basic goal of a system of checks and balances.

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ABOUT THE WRITER

Joshua Spivak is a senior fellow at the Hugh L. Carey Institute for Government Reform at Wagner College. He writes the Recall Elections Blog, and he wrote this for the Los Angeles Times.

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